Scranton v. Minneapolis City

Collins, J. In this action is involved the right of defendant city to maintain a parkway along the shore of Lake Harriet, in front of plaintiff’s premises, and, as an incident, to maintain a fence between a traveled wagon road and the parkway proper. Both parties claim title to the tract of land between plaintiff’s property and the lake, about one hundred feet wide, from a common source one Menage, who owned the same, part of a much larger tract, in 1883. This larger tract, a government lot, he had previously caused to be platted, subdivided, and named “Remington Park.” The plat was never recorded, but from an inspection it clearly appears that certain portions of the parts intended for public places were to be reserved for park purposes. Back of the block in which was located plaintiff’s premises was a public way, designated as “Bellevue Avenue,” but in front there was no public street, unless it was indicated by the fact that the easterly line of block 2, as traced on the plat, was about 100 feet from the lake, and the intervening strip was not subdivided into lots. In 1883 Menage conveyed about three-fourths of an acre of the larger tract to one Hammond, fully and accurately describing it by metes and bounds, and concluding the description by .saying that the premises were the same as those designated on a plat of Remington park as lots 14, 15, 16, and 17 of block 2, which was the fact. The conveyance was duly recorded. The easterly line of the conveyed land, and as a consequence the easterly line of block 2, paralleled the lake, and coincident with this line was a highway, not exceeding twenty feet wide, established by long-continued user and common-law dedication. Between this highway and the shore of the lake was a dense growth of native trees and shrubbery. Soon afterwards, Menage deeded all of the government lot, except the Hammond tract, to one Beard, who thereupon platted it into lots and blocks, naming the plat “First Division of Remington Park,” and this plat was properly died for record. The land conveyed to Hammond was outlined on the plat as a part of block 10, the distances along its boundary lines being stated in feet and inches. Its easterly line along its length, of about 216 feet, and therefore the westerly line of the highway already referred to, was the easterly line of block 10. On this plat, running from the north end of the government lot along the lake shore and the westerly line of the highway to a point south of Hammond’s southeast comer, was a heavy black line, which, [443] after passing the corner, turned to the west, terminating at the west line of the plat, and, for its entire length, forming the easterly or southerly boundary line of the platted blocks. South of this line, after it turned west, was a tract of land, embracing several acres, running back from the lake, all of which must have been dedicated as a street when the plat was made, if that part in controversy was. This tract was not named as a street on the plat, but was lettered "A.” Two public ways or streets were designated and named on the plat, but at every point the tract A was cut off and separated from them. At the time the plat was made and filed, and at the time it was approved by the city council as was required by law, defendant city held a contract with Beard for the purchase, for park purposes, of that part of the land which was lettered “A.” Now, unless we entirely disregard the line on the plat before mentioned, which evidently was designed to fix the boundaries of tract A on the north and east sides, and overlook other features of the plat, already referred to, including the fact that the city had contracted with Beard to purchase this identical land when he made the plat, and also the fact that the shape of tract A precludes the idea that it was all designated for ordinary street purposes, we must hold that a plain intention not to dedicate the whole of it for such public use was clearly indicated. See Village of White Bear v. Stewart, 40 Minn. 284, (41 N. W. 1045;) City of Duluth v. St. Paul & D. R. Co., 49 Minn. 201, (51 N. W. 1163.) This brings us to a consideration of the effect of the reference in the Menage-ETammond deed (plaintiff having obtained title to the tract therein conveyed) to the earlier but unrecorded plat; and we assume that this reference was sufficient to put subsequent purchasers, and therefore the city, upon notice of the contents of that plat. We have already stated that when the plat was made, prior to the execution of the deed to Hammond, there was a common-law highway along the easterly line of the tract of land, and that between this highway and the lake shore, some fifty or sixty feet away, was a dense growth of timber and brush; that, although streets and avenues elsewhere on the plat were distinctly designated and named as such, there was nothing on the strip between the Hammond land and the lake to indicate that it was designed, in whole or in part, for public use; and that it clearly appeared from the plat that portions [444] of the properly designated streets and avenues were reserved for ornamental or park purposes. All of these things are to be considered in determining whether Menage intended to dedicate all of the strip referred to for public use, or, if he did, whether all of the same was for use as a public street. It does not necessarily follow, even if the strip, to its full width, was set apart as public grounds, that all was dedicated, or must be used, for ordinary street purposes; so that, if we concede it to have been shown that an intention to dedicate is manifest from either or both of the plats, we are still of the opinion, taking into consideration the physical features of the locality and the other facts heretofore commented upon, that there was no intention, and certainly there was and is no necessity, to set apart all of this strip of land for use as a public or common thoroughfare. It is therefore immaterial for us to decide whether Hammond acquired title in fee to the land in front of his premises, subject to the public easement, or obtained no interest in it whatsoever, for in either event plaintiff cannot obtain possession. The plaintiff further contends, if it be held that the public have an easement in the grounds, that she is entitled to have the fence removed, and to this extent should have relief. If this strip is public ground she has the right of access; but this right is limited. She cannot insist, nor can any one else, that this right is not subject to reasonable restrictions. From the findings it appears that the city has caused openings to be made in the fence, so that plaintiff and the general public can pass through at points but a short distance from her house. It does not appear that she has been unreasonably restricted or limited in the right of access. Order affirmed. Buck, J., absent, sick, took no part. (Opinion published 60 N. W. 26.)